We’ve been investigating how rights flow between authors and publishers via publishing contracts. Publishers take broad rights, usually for the entire period of copyright. While you can find some provisions for returning rights to authors in contracts (think out of print clauses), they’re not always satisfactorily drafted, can’t evolve to reflect industry changes (like the advent of digital and print on demand) and are sometimes missing altogether.
Elsewhere in the world, authors’ contractual entitlements are supported by additional legal protections.
We’ve been thinking about what author-protective rights could look like in Australia, and to kick this off we’ve studied the reversion laws of 191 countries (every UN member except Panama and Mauritania, for which we we couldn’t find translatable laws). In our preliminary analysis, we found that around 55% of them had author-protective reversion laws of one kind or another. We’ve summed them up in four categories below:
At least around 5% of countries limited a transfer of copyright or license to a specific period of time, like 35 years (USA) or 25 years after the author’s death (Canada). Publishers can’t get around these limits by taking a longer time in the contract – the contracts – the limits apply anyway. Around 20% of countries also set a term for the contract to end if this hadn’t been specified in the contract.
‘Out of print’ rights
If a book is out of print, it can benefit an author to get their rights back to try and bring it back into print in another way. Around 24% of countries allowed the author to terminate a contract if the publisher refused to re-publish a book once it became out of print. Eighteen per cent of the countries that had this right set a standard for measuring when a book went out of print: for example, when the publisher’s stock went under 100 copies. This would make it easier for the author to get their rights back than if a book being out of print wasn’t defined. In our archival study we found that few contracts had such standards.
Relatedly, around 15% of countries provided that a publishing contract was deemed to have finished when all copies of a book were sold or destroyed by the publisher. Such mechanisms don’t translate well in an age where books can be perpetually available online, but suggest an element of reciprocity in publishing contracts: that they should only continue for as long as the publisher is genuinely investing in making the work available.
Other ‘use it or lose it’ rights
Authors could get their rights back in other situations where the publisher wasn’t using them, too:
- Around 17% of countries allowed an author to end a general copyright contract if the publisher didn’t use it at all or used it improperly.
- In Poland and Slovakia, authors can terminate their contracts if the way the publisher uses their work decreases its value.
- In Spain and Lithuania, an author who signed over rights in multiple languages can take back rights in languages that haven’t been used after five years.
- In France and Chile a contract can be ended if there are low sales after a period of time. We’ve referred to the French model before. In Chile, this right applies if more than 20% of the stock hadn’t been purchased after five years.
Other reversion rights
We also found some other interesting circumstances where authors could get their rights back:
- Around 15% of countries allowed the author to terminate the contract if the publisher was bankrupt, in liquidation or receivership, or otherwise out of business, although the procedural requirements for exercising this varied across countries.
- If the publisher transferred their business to another party in circumstances that were against the author’s interests, the author could cancel the contract (around 9% of countries).
Which paths to pursue?
As this new research has shown, author protective reversion rights can take many forms. We’ll be studying some of these in more detail. So far, the rights that stand out are the following:
- Right to reclaim rights to unexploited languages (or territories, or rights)
- Right to reclaim rights if there are no/low sales.
Appropriately crafted, such rights would protect publishers’ commercial interests whilst recognising authors’ special ongoing interests in their works. They would provide baseline protections for authors that would override contracts to the extent they’re outdated, unfair or poorly drafted.
We’d be very interested to hear what kinds of reversion rights stood out to you. Which do you think would be most advantageous to Australian writers? Comment below or send us a tweet at @authorsinterest.
*Results in this post have been updated.